Gender Specifics

Ann McGinley is tying up loose strings in her office on the fourth floor of the Beverly Rogers Literature and Law Building on the Tuesday following Independence Day weekend. The William S. Boyd Professor of Law and pioneering multidisciplinary masculinities theory scholar is heading to Florida’s Amelia Island for a brief writing sojourn after completing a few short articles and sending chapters from the 2017 edition of a casebook on disability law to her co-author. Near the end of September she will travel Seattle to accept the 2016 Paul Steven Miller award at the 11th annual Colloquium for Scholarship in Labor and Employment Law, where she’ll present her latest book, Masculinity at Work: Employment Discrimination Through a Different Lens.

“There are a lot of people (attending) who are doing different, interesting work,” said McGinley. “What I’m going to be talking about is my book, and how the theory and thesis can be used in practical and theoretical ways. They’ll use my book as a research tool, but I’m hoping lawyers and judges will also use this book in order to take advice on how to decide cases based on looking at masculinity research.”

Because of Sex

As a starting point for examining discrimination “because of sex” from a masculinities theory perspective, Masculinity at Work zooms in on the case of Miami Dolphins player Jonathan Martin, who was harassed in emasculating and sexually intimidating fashion by teammates. An emerging multidisciplinary field that draws on humanities and both social and natural sciences, masculinities studies focuses on the range of behaviors, definitions, and identities that inform contemporary concepts of manhood.

In the not too distant past the idea that a straight man could sexually harass another man was unthinkable. Men who engaged in “roughhousing” or “hazing” in a physical or sexual way were just being men. Sexual harassment only happened “because of sex,” “and in our minds that meant that sexual harassment occurs only because the harasser has a sexual interest in the victim,” McGinley noted. The courts had this definition in mind when they stated that harassment is illegal only if it occurs “because the person being harmed was a man or a woman,” she argued.

Courts said, you can’t discriminate because of sex.

“But then all these other questions came up,” McGinley said. “Is it illegal to discriminate because of sexual orientation? And all the courts said, ‘No, that’s different from “because of sex.” That hasn’t been put in the statute as a separate thing. It has to be in the statute.’”

The Role of Gender

Professor McGinley illustrates how gender affects behavior between men as well as between men and women with a male-on-male harassment case on an oil platform and a case involving a female plaintiff who was told by male supervisors at an accounting firm to be more feminine in order to get a promotion.

“This woman in this case who brought the lawsuit happened to be a very masculine woman and they refused to promote her to partner because they didn’t think she was feminine enough,” McGinley said. “The Supreme Court agreed that it was discrimination, but it’s not discrimination to discriminate — at least the lower courts say this — based on someone’s sexual orientation. So we’re at this really weird murky point: How do you know the difference between whether someone’s discriminating because of your sexual orientation or because you’re just not masculine or feminine enough?”

One goal of masculinities theory is to clear up some of those opaque areas that enable miscreant “men being men” behavior. Professor McGinley is on the front lines, prodigiously producing articles and collaborating with other respected figures in the field such as Suffolk University professor of law Frank Rudy Cooper, whose work in masculinity and race created synergy with her expertise in gender. She racks up flyer miles via presentations — at least a dozen in 2015 — at schools across the continental U.S. and Hawaii as well as far-flung locales such as Santiago, Chile; Como, Italy; and Madrid.

“I show through the research of masculinity that men engage in these behaviors not only because of the sex of the victim but also because of their own sense of masculinity,” said Professor McGinley. “In other words, the victim isn’t living up to what the perpetrators think is masculine enough in order for (the abusers) to feel masculine. It’s because of their own gender fears that they’re not masculine enough that they engage in, a lot of times, group behaviors. And also because the individual is not living up to the standard presentation or performance of gender, of being a masculine macho guy/person.”

Articulating masculinities theory is one thing. Changing attitudes within the legal system is another. While professor McGinley predicts judges will be resistant to masculinities theory at first, testimony from social scientists can bring the new ideas into the courtroom. “Most men don’t know that gender even matters to them,” said Michael Kimmel, distinguished professor of sociology at Stony Brook University in New York. “But that’s where we start. That’s where the conversation starts, and that’s why I think her work’s valuable.”

Kimmel knew of McGinley before they met. “She was writing in law journals, I was writing in sociology, but I think we were actually at a conference together maybe 12 years ago or so at Emory Law School. … That’s where I first became aware of her. Then I started reading her work.”

A Pioneering Scholar

He eventually wrote the forward to Masculinities and the Law: A Multidimensional Approach, a 2012 collection edited by professors Cooper and McGinley, in which he includes McGinley as part of “a pioneering group of scholars” who transcended the idea of women being measured by male standards and decentered masculinity as the norm for behavior standards. “There weren’t that many,” Kimmel said. “There were some women, some writers doing work in this area, but frankly I just thought her work was superb from the first time I read it.”

At the Boyd School of Law, where she arrived in 1999, McGinley’s influence inspired the theme of the 2013 edition of the Nevada Law Journal, titled Men, Masculinities, and Law: A Symposium on Multidimensional Masculinities Theory. “She quickly assembled a tremendous group of authors, who share her passion and devotion to the study,” said Boyd graduate Jason DeForest, ’13 JD, the issue’s editor-in-chief. “With professor McGinley’s guidance, those authors provided invaluable insight into the realm of masculinities and its role in our society.”

DeForest credits McGinley as having a “tremendous” influence on his education, but her influence at UNLV extends beyond law students. “I sat in on her Masculinities class at the law school in the spring,” said Lynn Comella, a UNLV associate professor of gender and sexuality studies. “I wish more law classes dealt with these issues. They are so relevant to understanding the larger forces and biases that structure the legal frameworks and judicial decisions.”

McGinley herself has become relevant to that understanding, but she has miles to go and many more words to write before she’s done. When she needs a brief working vacation there’s always Amelia Island, but she can’t escape being at the forefront of the law, gender, and discrimination. “Now I’m going out there to walk on the beach, and do some research, and write my other article, which should be really interesting,” she said. “It’s going to be about egg freezing as an employment benefit, and whether that’s helpful or harmful to women.”

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